Closed-Door Talks on Set-Top Box Rule Frustrate Diversity Probe

Roel Smart/

Federal Communications Commission Chairman Tom Wheeler’s refusal to open up his cable set-top box proposal to another round of public comment may be stymieing work on a government report about the plan’s potential impact on minority programming.

The government office in charge of the report says its investigators are doing what they can.

Rep. Yvette Clarke (D-N.Y.), who is first vice chairwoman of the Congressional Black Caucus, spoke to reporters Wednesday about how ongoing, behind-the-scenes changes to the set-top box plan have made it difficult for the Government Accountability Office to conduct a study that she requested with Rep. Greg Walden (R-Ore.) in April. Walden chairs the telecommunications subcommittee of the House Energy and Commerce Committee.

While the GAO has assembled a staff to look into her questions, Clarke said they have not yet begun work on the rule “because of the fluid nature of the proposal at this stage.”

“The challenge we face right now is there is a new proposal emerging that would make the accuracy of the work that [the GAO does] a moot issue, because we’re essentially dealing with some new dynamics that would not go into the impact study,” the congresswoman said.

GAO spokesman Charles Young somewhat disputed Clarke’s characterization. “The work remains underway and is not contingent upon any particular proposal,” he said. “We’re looking at the broader-impact questions, such as the economics around set-top boxes and diversity of programming impacted by any changes in the market.”

Young added that the GAO does not yet have an anticipated release date for the report.

Following the September release of a fact sheet detailing a revised version of the FCC’s original set-top plan, a scheduled vote on the proposal was abruptly and indefinitely delayed just before the commission’s Sept. 29 open meeting.

Wheeler and other commissioners claim that the proposal continued to change up until the night before the meeting. Their disagreements likely centered on whether the FCC has the authority to oversee a copyright licensing board for pay-tv apps.

But Clarke — in a joint call for reporters with Rep. Tony Cárdenas (D-Calif.), National Urban League President Marc Morial and Brent Wilkes, the national executive director of the League of United Latin American Citizens — worries that the plan may contain provisions that drive down the value of programming to a point that established minority programmers may struggle to survive.

“We have fought for many years to establish greater programming diversity,” Clarke said. “We are concerned that if this process ends in a rule that drives down the value of programming and makes it difficult for small and diverse programmers to continue producing quality content for underserved audiences, we will really squander the progress that we made.”

Clarke’s colleagues joined in urging the commission to issue a Further Notice of Proposed Rulemaking (FNPRM), rather than a final rule, to give the public a chance to comment and the GAO time to study the proposal’s specific impact on diverse content.

Cárdenas, who led 63 other House Democrats in signing a Sept. 22 letter asking Wheeler to delay the set-top vote over copyright issues, said Wednesday that he “appreciated” that the chairman pulled the proposal from last week’s agenda.

“Hopefully what that indicates is that Chairman Wheeler is willing to listen respectfully to all the stakeholders, and hopefully follow through with another notice of proposed rulemaking,” Cárdenas said.

Some of the civil rights leaders expressed frustration with Wheeler, claiming that the chairman ignored their repeated requests to investigate the set-top proposal’s impact on minority programming.

“The FCC’s record in promoting diversity in the telecommunications industry is not good,” said Morial, who pushed the commission to “do an analysis, conduct the study, secure the evidence.”

Over the weekend, the National Urban League, the NAACP, and 17 other civil rights groups filed a formal petition with the FCC, asking the commission to issue an FNPRM on the set-top box issue and lift “sunshine restrictions” that prevent public or stakeholder comment.

Clarke said she had not received any written response from the commission about whether Wheeler is willing to send the revised set-top plan to the GAO for study. “They generally know the spirit and intent with which we’ve asked for this study to begin with,” Clarke said. “So that should be fundamental to honoring this request.”

“At the least there should be another public comment period through which the GAO can move forward,” Clarke said, adding that there should be a delay “until the study is done.”

Not all minority programmers are opposed to the commission’s plan, especially if they think they are shut out of the market by other large competitors. “For decades, cable’s top-down programming has left Asian Americans fighting for scraps in terms of television representation,” Mark Tseng Putterman, a spokesman for Asian American advocacy group, said in a statement to Morning Consult.

“Unlocking the box and giving consumers universal search will help level the playing field for countless creatives of color that want to tell their stories on their own terms, but have been boxed out by cable industry gatekeepers,” Putterman said.

Morning Consult